TAPIA VS AGUILAR

1. CASE # CASE NAME HEARING NAME DEMURRER AND MOTION TO STRIKE 2ND CVME2505257 TAPIA VS AGUILAR AMENDED COMPLAINT Tentative Ruling: Overrule the demurrer entirely and Deny the motion to strike. The Aguilars shall file an answer to the SAC within 15 days. Send the parties to an early MSC, within 120 days. The Court will notify the parties when the Zoom mediation is set.

Non-Judicial Foreclosure: The Aguilars’ first argument is that all four causes of action fail because the exhibits attached to the SAC state they had the ability to obtain a judgment or foreclose on the subject property. This argument fails at the pleading stage because the Aguilars ignore the fact that the allegations, and the exhibits, indicate that the Aguilars are liable for proceeding with a non-judicial foreclosure. The Settlement Agreement is clear that the Aguilars have two options, a judgment or “...the right to judicially foreclose and/or seek an order for Defendants to vacate...” (SAC, Exhibit E, ¶ 12.) The SAC takes issue with the fact that the Aguilars went forward with a non-judicial foreclosure. (SAC, ¶ 21.) There is no conflict between the allegations and the SAC and therefore, not grounds for demurrer for pleading purposes.

Fraud: The Aguilars first argue the SAC does not allege who specifically made the promise or when and where it was made “apart from the written settlement.” But this ignores the fact that the alleged fraudulent promise was the Settlement Agreement. The SAC states the Aguilars made a promise and represented they would adhere to the terms of the Settlement Agreement and then include the Settlement Agreement as an exhibit to the SAC, indicating the “promise” was made. (SAC, ¶ 44, Exhibit E.) The SAC also sufficiently alleges justifiable relance and intent. (SAC, ¶¶ 52-53.) This is sufficient for pleading purposes.

Breach of Written Contract: Each of the Aguilars’ arguments go to the merits of the claim rather than the sufficiency of the allegations. There is no requirement for the breach of contract claim to be plead with specificity. The SAC states that Plaintiffs performed or substantially performed their obligations or are excused from any nonperformance. (SAC, ¶ 59.) The allegations identify the contract, allege the Aguilars breached it, and allege damage in the form of the foreclosure. This is sufficient for pleading purposes.

Wrongful Foreclosure: The SAC alleges the foreclosure is entirely unauthorized pursuant to the Settlement Agreement which only authorized a judicial foreclosure. Therefore, the Aguilars’ argument that the failure to allege tender of the full amount of indebtedness is without merit. “Before a junior lienor may set aside a nonjudicial foreclosure of real property under a deed of trust because of irregularities in the sale, the junior lienor must first tender the full amount owing on the senior obligation.” (Arnolds Management Corp. v.

Eischen (1984) 158 Cal.App.3d 575, 577.) Here Plaintiffs seek to obtain monetary damages as the result of the wrongful foreclosure that allegedly breached the Settlement Agreement. There is no request to set aside the nonjudicial foreclosure. Regarding the citation to Civil Code § 2923.5, the Aguilars argue this statute does not apply to a junior lien. But in determining whether complaint is sufficient, as against demurrer, on ground that it does not state facts sufficient to

constitute a cause of action, if it appears that plaintiff is entitled to any relief against defendant, the complaint will survive the demurrer, even if the facts may not be clearly stated or though plaintiff may demand relief to which he is not entitled under facts alleged. (Augustine v. Trucco (1954) 124 Cal.App.2d 229, 237.) In fact, it is error for trial court to sustain demurrer when plaintiff has stated cause of action under any possible legal theory. (Howard Jarvis Taxpayers' Assn. v. Board of Supervisors (1996) 41 Cal.App.4th 1363, 1372.) This cause of action independently alleges that the foreclosure was wrongful based on the violation of the Settlement Agreement. (SAC, ¶ 67.) This is a possible legal theory regardless of the Civil Code § 2923.5 and therefore, the allegations are sufficient for pleading purposes.

Unfair Business Practices: The Aguilars argue that because the other three causes of action fail, the UCL claim fails as well. But as stated above, the other three causes of action are not subject to demurrer. The UCL cause of action is properly stated.

Motion to Strike: A properly pleaded fraud claim will itself support recovery of punitive damages. No allegations of “malice” or intent to injure plaintiff are required, because fraud is an alternative basis for recovery (“oppression, fraud or malice”). (Stevens v. Sup.Ct. (St. Francis Med. Ctr.) (1986) 180 Cal.App.3d 605, 610.) Because the fraud claim survives demurrer as stated above, so too does the request for punitive damages.

The Aguilars also seek to strike paragraphs 40-42, 45, and 73 as “improper surplusage.” The Aguilars argue these paragraphs belong in a brief and not a complaint. There is nothing stating that a complaint cannot contain citations to case law. While not necessarily required for stating a claim, it is unclear to what end this request is made.

2. CASE # CASE NAME HEARING NAME COX VS TULIP MOTION TO COMPEL PRODUCTION OF CVME2510697 CREMATION DOCUMENTS Tentative Ruling: Continue to September 22, 2026. The opposition is untimely. The Court will exercise its discretion to consider the late opposition. (See Kapitanski v. Von’s Grocery Store (1983) 146 Cal. App. 3d 29, 32.) Plaintiffs shall have an additional opportunity to file a Supplemental Reply (Plaintiffs had only one day to reply and part of the brief related to the untimely Opposition). The Supplemental Reply (no more than 5 pages) shall be filed no later than 5 days before the continued hearing.